Code of Federal Regulations: Containing a Codification of Documents of ...

(19) Reconversion, alteration, restoration, or rehabilitation of the contractor's facilities, except as expressly provided elsewhere in this contract.

(20) Research and development costs, unless specifically provided for elsewhere in this

contract.

(21) Selling and distribution activities and related expenses not applicable to the performance of this contract.

(22) Storage of records pertaining to this contract after completion of operations under this contract irrespective of contractual or statutory requirement of the preservation of records.

(23) Taxes, fees and charges in connection with financing, refinancing, or refunding operations, including the listing of securities on exchanges; taxes which are paid contrary to the clause entitled "State and Local Taxes;" Federal taxes on net income and excess profits; and special assessments on land which represent capital improvement. [25 FR. 8864, Sept. 15, 1960, as amended at 26 F.R. 7582, Aug. 16, 1961; 26 F.R. 11489, Dec. 5, 1961]

§ 9-7.5006-11 Allowable costs (research and development contracts with educational institutions).

The Commission shall pay to the Contractor for performance of this contract the allowable direct costs incident to its performance plus the allocable portion of the allowable indirect costs of the Contractor less applicable credits as determined in accordance with:

(a) Subpart 1-15.3 of the Federal Procurement Regulations, copy appended, and (b) the terms of this contract.

126 F.R. 11489, Dec. 5, 1961]

§ 9-7.5006-12 Allowable costs and fixed fee (A-E contracts). [Reserved]

§ 9-7.5006-13 Drawings, designs, specifications.

All drawings, sketches, designs, design data, specifications, notebooks, technical and scientific data, and all photographs, negatives, reports, findings, recommendations, data and memoranda of every description relating thereto, as well as all copies of the foregoing relating to the work or any part thereof, shall be subject to inspection by the Commission at all reasonable times (for which inspection the proper facilities shall be afforded the Commission by the contractor and its subcontractors), shall be the property of the Government and may be used by the Government for any purpose whatsoever without any claim on the part of the contractor and its sucontractors and vendors for additional compensation and shall, subject to the right of the contractor to retain a copy of said material for its own use, be delivered to the Government, or otherwise disposed of by the contractor either as the Contracting Officer may from time to time direct during the

progress of the work or in any event as the Contracting Officer shall direct upon completion or termination of this contract. The contractor's right of retention and use shall be subject to the security and patent provisions, if any, of this contract.

NOTE: When the Contracting Officer considers that the right of the contractor to use the material covered by this article should be restricted, as, for example, when it appears that the contractor might derive competitive advantage by the unrestricted use of this material the following language should be added to the last sentence of this article: "and the use of this material by the contractor is further restricted to the use in connection with the work under this contract unless prior written approval is obtained from the Commission for other uses." § 9-7.5006.14 Estimates of costs, obligation of funds, and fixed fee. (a) Initial estimate of cost and fixed fee. The presently estimated cost of the work under this contract is dollars ($. --) exclusive of the contractor's fixed fee. The contractor's fixed fee, as set forth in Clause of this contract, is dollars ($‒‒‒‒‒‒‒).

(b) Obligation of funds. The amount presently obligated by the Government with respect to this contract is

-------

dollars

(c) Revised estimates of cost and obligation of funds. The presently estimated cost of the work under this contract may be increased unilaterally by the Commission by written notice to the contractor and may be increased or decreased by written agreement of the parties (whether or not by formal modification of this contract) and such revised estimate plus the fixed fee shall be deemed substituted in (b) above as the amount obligated with respect to this contract.

(d) Limitation of obligation. Payments on account of costs shall not in the aggregate at any time exceed the amount of funds presently obligated hereunder less the contractor's fixed fee.

(e) Notice of costs approaching funds obligated Contractor excused pending increase when obligation is reached. Whenever the contractor has reason to believe that the total cost of the work under this contract (exclusive of the contractor's fixed fee) will be substantially greater or less than the presently estimated cost of the work the contractor shall promptly notify the Contracting Officer in writing. The contractor shall also notify the Contracting Officer in writing when the aggregate of expenditures and outstanding commitments allowable under this contract, including the contractor's fixed fee, is equal to ninety percent (90%) (or such other percentage as the Contracting Officer may from time to time establish by notice to the contractor) of the amount

of funds presently obligated hereunder. When such expenditures and outstanding commitments, including the contractor's fixed fee, equal one hundred percent (100%) of such amount the contractor shall make no further commitments or expenditures (except to meet existing commitments) and shall be excused from further performance of the work unless and until the Contracting Officer thereafter shall increase the funds obligated with respect to this contract.

(f) Government's right to terminate not affected. The giving of any notice by either party under this article shall not be construed to waive or impair any right of the Government to terminate the contract under the provisions of the clause entitled "Termination."

(g) Cost information. The contractor shall maintain current cost information adequate to reflect the cost of performing the work under this contract at all times while the work is in progress, and shall prepare and furnish to the Government such written estimates of cost and information in support thereof as the Contracting Officer may request.

(h) Correctness of estimates not guaranteed. Neither the Government nor the contractor guarantees the correctness of any estimate of cost for performance of the work under this contract, and there shall be no adjustment in the amount of the contractor's fixed fee by reason of errors in the computation of estimates or differences between such estimates and the actual cost for performance of the work.

NOTE A: If the parties so desire for the purpose of clarity, there may be included in (a) above the following additional sentence: "The estimated cost of the work under this contract for the period is dollars ($--------) exclusive of the Contractor's fixed fee."

NOTE B: The following may be substituted as an alternative to the second sentence of (e) above:

"The contractor shall also notify the Contracting Officer in writing when the aggregate of expenditures and outstanding commitments allowable under this contract, including the contrator's fixed fee leaves available funds sufficient only to continue operations for forty-five (45) days." § 9-7.5006-15 Key personnel.

It having been determined that the employees whose names appear [below] [in Appendix ], or persons approved by the Contracting Officer as persons of substantially equal abilities and qualifications, are necessary for the successful performance of this contract, the contractor agrees to assign such employees or persons to the performance of the work under this contract and shall not reassign or remove any of them without the consent of the Contracting Officer. Whenever, for any reason, one or more of the

§ 9-7.5006-23 Payments and advances (cost type contracts where funds are advanced by AEC).

(a) Installments of fixed fee. Ninety percent (90%) of the fixed fee shall become due and payable in periodic installments in amounts based on the proportion of the work then completed, as determined by the Contracting Officer, and the balance upon completion and acceptance of all work under this contract.

NOTE A: For operating contracts use: The fixed fee provided for in Clause shall be paid in equal monthly installments as it

accrues.

NOTE B: Where a separate fixed fee is provided for a separate item of work, this subparagraph should be modified to permit payment of the entire fixed fee upon completion of that item.

(b) Payments on account of allowable costs. The Contracting Officer and the contractor shall agree as to the extent to which payment for allowable costs or payments for other items specifically approved in writing by the Contracting Officer shall be made from advances of Government funds.

(c) Special Bank Account-Use. All advances of Government funds shall be made by check payable to the contractor and shall be deposited only in the Special Bank Account referred to in the Agreement

for Special Bank Account, which is attached hereto and incorporated into this contract as an appendix. The contractor shall likewise deposit in the Special Bank Account any other revenues received by the contractor in connection with the work under this contract. No part of the funds in the Special Bank Account shall be (a) mingled with any funds of the contractor or (b) used for a purpose other than that of making payments for costs allowable under this contract or payments for other items specifically approved in writing by the Contracting Officer. If the Contracting Officer shall at any time determine that the balance on such bank account exceeds the contractor's current needs, the contractor shall promptly make such disposition of the excess as the Contracting Officer may direct.

NOTE: For Special Bank Account Agreement see § 9-7.5006-24.

(d) Title to funds advanced. Title to the unexpended balance of any funds advanced and of any bank account established pursuant to this clause shall remain in the Government and be superior to any claim or lien of the bank of deposit or others. It is understood that an advance to the contractor hereunder is not a loan to the contractor, and will not require the payment of interest by the contractor, and that the contractor acquires no right, title, or interest in or to such advance other than the right to make expenditures therefrom as provided in this clause.

(e) Review and approval of costs incurred. The contractor shall prepare and submit annually as of June 30 a voucher, for the total of net expenditures accrued (i.e., net costs incurred) for the period covered by the voucher, and the Commission, after audit and appropriate adjustment will approve such voucher. This approval by the Commission will constitute an acknowledgment by the Commission that the net costs incurred are allowable under the contract and that they have been recorded in the accounts maintained by the contractor in accordance with the Commission accounting policies, but will not relieve the contractor of responsibility for the Commission's assets in its care, for appropriate subsequent adjustments, or for errors later becoming known to the Commission.

(f) Financial settlement. The Government shall promptly pay to the contractor the unpaid balance of allowable costs and fixed fee upon termination of the work, expiration of the term of the contract, or completion of the work and its acceptance by the Government after (1) compliance by the contractor with the Commission's patent clearance requirements, and (2) the furnishing by the contractor of:

(1) an assignment of the contractor's rights to any refunds, rebates, allowances, accounts receivable, or other credits applicable to allowable costs under the contract;

(2) a closing financial statement; and (3) the accounting for Government-owned property required by the clause entitled "Property."

(4) a release discharging the Government, its officers, agents, and employees from all liabilities, obligations, and claims arising out of or under this contract, subject only to the following exceptions:

(i) specified claims in stated amounts or in estimated amounts where the amounts are not susceptible of exact statement by the contractor;

(ii) claims, together with reasonable expenses incidental thereto, based upon liabilities of the contractor to third parties arising out of the performance of this contract; provided that such claims are not known to the contractor on the date of the execution of the release; and provided further that the contractor gives notice of such claims in writing to the Contracting Officer not more than six (6) years after the date of the release or the date of any notice to the contractor that the Government is prepared to make final payment, whichever is earlier; and

(iii) claims for reimbursement of costs (other than expenses of the contractor by reason of any indemnification of the Government against patent liability), including reasonable expenses incidental thereto, incurred by the contractor under the provisions of this contract relating to patents.

In arriving at the amount due the contractor under this clause, there shall be deducted (1) any claim which the Government may have against the contractor in connection with this contract, and (2) deductions due under the terms of this contract, and not otherwise recovered by or credited to the Government. The unliquidated balance of the Special Bank Account may be applied to the amount due and any balance shall be returned to the Government forthwith.

(g) Claims. Claims for credit against funds advanced or for payment shall be accompanied by such supporting documents and justification as the Contracting Officer shall prescribe.

(h) Discounts. The contractor shall take and afford the Government the advantage of all known and available cash and trade discounts, rebates, allowances, credits, salvage, and commissions unless the Contracting Officer finds that such action is not in the best interest of the Government.

(1) Revenues. All revenues other than the contractor's fixed fee or fees, if any. accruing to the contractor in connection with the work under this contract shall be Government property and shall be deposited in the Special Bank Account to be available for payment of allowable cost under this contract.

(1) Direct payment of charges-deductions. The Government reserves the right, upon ten days written notice from the Contracting Officer to the contractor, to pay directly to the persons concerned all amounts due which otherwise would be allowable under this

the Commission and the Contractor entered into Contract(s) No. or a Supplemental Agreement thereto, providing for the making of advances of Government funds to the Contractor. Copy of such advance provisions has been furnished to the Bank.

(b) The Commission requires that amounts advanced to the Contractor under said contract or Supplemental Agreement be deposited in a Special Bank Account or accounts with a bank designated by the Treasury Department as a depositary and financial agent of the government (Section 10 of the Act of June 11, 1942, 56 Stat. 356; 12 U.S.C. 265), separate from any of the Contractor's general or other funds; and, the Bank being such a bank, the parties are agreeable to so depositing said amounts with the Bank.

(Name of Contractor) (Contract No.) United States Atomic Energy Commission Special Bank Account."

COVENANTS

In consideration of the foregoing, and for other good and valuable considerations, it is agreed that:

(1) The Government shall have title to the credit balance in said account to secure the return of all advances made to the Contractor, which title shall be superior to any lien or claim of the Bank or others with respect to such account.

(2) The Bank will be bound by the provisions of said contract or contracts relating to the deposit and withdrawal of funds in the above Special Bank Account, but shall not be responsible for the application of funds properly withdrawn from said account. After receipt by the Bank of written directions from the Contracting Officer, or from the duly authorized representative of the Contracting Officer or the Manager of the

(4) In the event of the service of any writ of attachment, levy of execution, or commencement of garnishment proceedings with respect to the Special Bank Account, the Bank will promptly notify the Manager, Operations Office, United States In Atomic Energy Commission. witness whereof the parties hereto have caused this Agreement to be executed as of the day and year first above written.

(Signatures and official titles)

§ 9-7.5006-25 Payments (cost-type contracts where funds are not advanced). (a) Payments on account of allowable costs. Once each month (or at more frequent intervals, if approved by the Contracting Officer) the contractor may submit to the Contracting Officer, in such form and reasonable detail as he may require, an invoice or voucher supported by a statement of costs incurred by the contractor in the performance of this contract and claimed to

constitute allowable costs. Promptly after receipt of each invoice or voucher the Government shall, subject to the provisions of (c) below, make payment thereon as approved by the Contracting Officer.

NOTE: For supply-type contracts make last sentence read "make payment to the extent of 90% thereon."

(b) Eighty-five percent (85%) of the fixed fee, if any, shall become due or payable in periodic installments in amounts based on the proportion of the work then completed, as determined by the Contracting Officer, and the balance upon completion and acceptance of all work under this contract; provided, however, that the Contracting Officer may at any time that the amount of the retained fixed fee equals 15% of the total fixed fee or equals one hundred thousand dollars ($100,000) whichever is less, make payments of any of the remaining periodic installments of the fixed fee, in full.

(c) Audit Adjustments. At any time or times prior to settlement under this contract the Contracting Officer may have invoices or

vouchers and statements of cost audited. Each payment theretofore made shall be subject to reduction for amounts included in the related invoice or voucher which are found by the Contracting Officer, on the basis of such audit, not to constitute allowable cost. Any payment may be reduced for overpayments, or increased for underpayments, on preceding invoices or vouchers.

(d) Completion voucher. On receipt and approval of the invoice or voucher designated by the contractor as the "completion invoice" or "completion voucher" and upon compliance by the contractor with all the provisions of this contract (including, without limitation, the provisions relating to patents and provisions of (e) below) the Government shall promptly pay to the contractor any balance of allowable cost, and any part of the fixed fee which has been withheld pursuant to (b) above or otherwise not paid to the contractor. The completion invoice or voucher shall be submitted by the contractor promptly following completion of the work under this contract but in no event later than one (1) year (unless within the year the Contracting Officer grants a further specific period of time) from the date of such completion.

(e) Applicable credits. The contractor agrees that any refunds, rebates, credits, or other amounts (including any interest thereon) accruing to or received by the contractor or any assignee under this contract shall be paid by the contractor to the Government, to the extent that they are properly allocable to costs for which the contractor has been reimbursed by the Government under this contract. Reasonable expenses incurred by the contractor for the purpose of securing such refunds, rebates, credits, or other amounts shall be allowable costs hereunder when approved by the Contracting Officer.

(f) Financial settlement. Prior to final payment under this contract, the contractor and each assignee under this contract whose assignment is in effect at the time of final payment under this contract shall execute and deliver:

(1) an assignment to the Government, in form and substance satisfactory to the Contracting Officer, or refunds, rebates, credits, or other amounts (including any interest thereon) properly allocable to costs for which the contractor has been reimbursed by the Government under this contract; and

(2) a release discharging the Government, its officers, agents, and employees from all liabilities, obligations, and claims arising out of or under this contract, subject only to the following exceptions:

(1) specified claims in stated amounts or in estimated amounts where the amounts are not susceptible of exact statement by the contractor;

(11) claims, together with reasonable expenses incidental thereto, based upon liabilities of the contractor to third parties arising out of performance of this contract; pro

vided that such claims are not known to the contractor on the date of the execution of the release; and provided further that the contractor gives notice of such claims in writing to the Contracting Officer not more than six (6) years after the date of the release or the date of any notice to the contractor that the Government is prepared to make final payment, whichever is earlier; and

§ 9-7.5006-26 Property (CPFF).

(a) Furnishing of Government Property. The Government reserves the right to furnish any property or services required for the performance of the work under this contract.

(b) Title to Property. Title to all property furnished by the Government shall remain in the Government except as otherwise provided in this article. Except as otherwise provided by the Contracting Officer, title to all materials, equipment, supplies, and tangible personal property of every kind and description purchased by the Contractor, for the cost of which the Contractor is entitled to be reimbursed as a direct item of cost under this contract, shall pass directly from the vendor to the Government. The Government reserves the right to inspect, and to accept or reject, any item of such property. The Contractor shall make such disposition of rejected items as the Contracting Officer shall direct. Title to other property, the cost of which is reimbursable to the Contractor under this contract, shall pass to and vest in the Government upon (i) issuance for use of such property in the performance of this contract, or (ii) commencement of processing or use of such property in the performance of this contract, or (iii) reimbursement of the cost thereof by the Government, whichever first occurs. Property furnished by the Government and property purchased or furnished by the Contractor, title to which vests in the Government, under this paragraph are hereinafter referred to as Government Property. Title to Government Property shall not be affected by the incorporation of the property into or the attachment of it to any property not owned by the Government, nor shall such Government Property, or any part thereof, be or become a fixture or lose its identity as personalty by reason of affixation to any realty.

(c) Identification. To the extent directed by the Contracting Officer, the Contractor shall identify Government Property coming into the Contractor's possession or custody by marking or segregating in such a way, satisfactory to the Contracting Officer, as

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